Willis v Workers Compensation Nominal Insurer (iCare)
[2021] NSWPICMP 41
•8 April 2021
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Willis v Workers Compensation Nominal Insurer (iCare) [2021] NSWPICMP 41 |
| APPELLANT: | Richard Willis |
| FIRST RESPONDENT: | Kelvin Oates |
| SECOND RESPONDENT: | Workers Compensation Nominal Insurer (iCare) |
| APPEAL PANEL: | Member Brett Batchelor |
DATE OF DECISION CATCHWORDS: | 8 April 2021 WORKERS COMPENSATION- Claim for further lump sum compensation for injury sustained by the appellant in 1996 when employed by the first respondent as a shearer; the AMS was also asked to provide a total WPI assessment for threshold in respect of the body parts for which the appellant worker had received compensation under the Table of Disabilities; the AMS issued a MAC containing assessments of permanent impairment/loss of use for the body parts in respect of which compensation pursuant to section 66 of the 1987 Act had been previously awarded, and also issued a MAC containing an assessment of WPI in respect of injury to those body parts; In each case, he deducted ¾ of the assessments for impairment resulting from an earlier period of employment of the applicant as a shearer, and 1/8th as being due to the effects of age related factors occurring since the cessation of his employment with the first respondent in 1996; the appellant’s injury was one in accordance with section 4(b)(ii) of the 1987 Act, the date of which was determined in accordance with section 16 of that Act; Held- the deduction of both the ¾ of the assessments for impairment/loss of use and WPI resulting from the earlier period of employment as a shearer, and the 1/8th as being due to the effects of age related factors occurring since the cessation of his employment with the first respondent in 1996, was an error on the part of the AMS (now a Medical Assessor); Ozcan v Macarthur Disability Services Ltd [2020] NSWWCCPD 21 and Secretary, New South Department of Education v Johnson [2019] NSWCA 321 relied upon; the Appeal Panel revoked the two MACs issued by the AMS and issued new certificates containing the assessments made by the AMS without the ¾ and 1/8th (total 7/8th) deductions made by him from those assessments. |
STATEMENT OF REASONS FOR DECISION OF THE APPEAL PANEL IN RELATION TO A MEDICAL DISPUTE
BACKGROUND TO THE APPLICATION TO APPEAL
On 5 November 2020 Richard Willis (the appellant/Mr Willis) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Tim Anderson, a Medical Assessor (formerly referred to as an Approved Medical Specialist – ‘AMS’, and hereinafter referred to as ‘the Medical Assessor’), who issued a Medical Assessment Certificate (MAC) on 21 October 2020.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act):
· the assessment was made on the basis of incorrect criteria,
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). This matter was also assessed under the Table of Maims in accordance with Amended Certificate of Determination – Consent Orders issued by the Workers Compensation Commission on 21 September 2020.
RELEVANT FACTUAL BACKGROUND
The appellant left school at age 14 years and worked for a number of years as a farm labourer and in a timber yard. He injured his right knee on 8 April 1980 when he was thrown off a horse. The knee injury was treated conservatively, with the appellant having his right leg in a plaster cast for a period of six months. A workers compensation claim in respect of this injury was settled on 4 November 2008, with Mr Willis accepting compensation for 15% permanent loss of use of his right leg.
The appellant was employed as a shearer by Bormack Holdings Pty Ltd, and thereafter the first respondent Kelvin Oates, for a significant period of time until 8 August 1996 when the suffered an injury deemed to have occurred on that date which is the subject of the current proceedings. It is difficult to ascertain the time frame over which Mr Willis worked for these two employers. In the history relating to the injury in the MAC dated 21 October 2020 the Medical Assessor, Dr Anderson, records the difficulty he had in obtaining any kind of accurate and consistent history from Mr Willis[1]. Dr Anderson concluded, after an extensive review of the file, that the appellant worked for between 15 and 20 years in total as a shearer for the two employers referred to above, and fixed on a period of 20 years. In respect of the period that the appellant worked for Kelvin Oates, Dr Anderson noted that this had been described as between one and two years. However, giving Mr Willis the benefit of any possible doubt, the doctor adopted a period of five years during which he worked for Kelvin Oates for the purpose of assessment of permanent impairment resulting from the injury of 8 August 1996. He therefore proceeded on the assumption that the appellant worked for Kelvin Oates for one quarter of his total period of employment as a shearer.
[1] Appeal Papers p 38.
Mr Willis was unable to continue with his occupation as a shearer after the injury of 8 August 1996. It appears that he has not worked at all since that time.
In proceedings on the former Compensation Court of NSW heard before Bagnall AJ in Dubbo on 11 February 1999 the appellant was awarded lump sum compensation as a result of injuries suffered in the employ of Kelvin Oates in respect of:
(a) 9% permanent impairment of the back;
(b) 3% permanent impairment of the neck, and
(c) 10% permanent loss of use of each arm at or above the elbow.[2]
[2] Appeal Papers pp 152 and 159.
On 28 November 2012 AMS Dr Chris Oates issued a MAC containing the following assessments of permanent impairment in accordance with the Table of Disabilities as a result of injury deemed to have occurred on 8 August 1996:
(a) 14% permanent impairment of the back;
(b) 8% permanent impairment of the neck;
(c) 15% permanent loss of efficient use of the right arm at or above the elbow including below the elbow;
(d) 15% permanent loss of efficient use of the left arm at or above the elbow including below the elbow;
(e) 5% permanent loss of efficient use of the right leg at or above the knee including below the knee, and
(f) 5% permanent loss of efficient use of the left leg at or above the knee including below the knee.
Dr Oates noted that in view of the previous award of 9% permanent impairment of the back and 3% permanent impairment of the neck, there was an additional 5% permanent impairment of the back and 3% permanent impairment of the neck. In view of the previous award of 10% loss of use of the right and left arms at or above the elbow, there was an additional 5% loss of use the right and left arms at or above the elbow.[3]
[3] Appeal Papers pp 179 and 188.
The appellant was independently medically examined by Dr Frank Machart, orthopaedic surgeon, on 23 October 2017 at the request of icare Workers Insurance. In his report dated 30 October 2017[4], Dr Machart found the same levels of impairment/loss of use according to the Table of Maims as those found by Dr Oates, set out at [10] above, with the exception of the left leg at or above the knee, for which he did not provide an assessment. He also assessed whole person impairment (WPI) as a result of injury to the cervical spine, lumbar spine, right upper extremity, left upper extremity and right lower extremity. He found a total of 9% WPI calculated as follows:
(a) cervical spine – 7% WPi;
(b) lumbar spine – 0% WPI;
(c) right upper extremity – 0% WPI;
(d) left upper extremity – 0% WPI, and
(e) right lower extremity – 8% WPI reduced by ¾ pursuant to s 323 of the 1998 Act for a final figure of 2% WPI.
The ¾ reduction in WPI was attributed to the significant right knee injury suffered by the appellant before he commenced work with Kelvin Oates, and progression of injury-related osteoarthritis up until the time that the appellant ceased work for Kelvin Oates in 1996. Dr Machart found that such aggravation “…is no more than one-quarter in the overall context of initial injury at the age of 18, working as a shearer for other companies and natural
progression of osteoarthritis since 1996.” Dr Machart also commented upon the degree of permanent impairment and WPI as a result of aggravation of arthritis or degenerative change occurring after 1996 in the other body parts assessed by him. Further comment will be provided on this aspect of the assessment of Dr Machart hereunder.[4] Appeal Papers p 192.
The appellant was independently medically examined by Dr J G Bodel on 4 December 2019 at the request of icare Workers Insurance.[5] Dr Bodel noted that Mr Willis suffered an injury on 8 August 1997 and that he last worked a shearer on that day. The “Summary of Injuries” referred to:
· Gradual onset of neck and back pain.
· Gradual onset of bilateral elbow pain.
· Gradual onset of pain in both wrists.
· Pain radiating into both legs.
[5] Appeal Papers p 214.
Dr Bodel found:
(a) 15% permanent impairment of function in the neck;
(b) 10% permanent of function in the back;
(c) 25% permanent loss of efficient use of the right arm at or above the elbow;
(d) 25% permanent loss of efficient use of the left arm at or above the elbow;
(e) 5% permanent loss of efficient use of the right leg at or above the knee, and
(f) 5% permanent loss of efficient use of the left leg at or above the knee.
Dr Bodel saw no indication clinically of any pre-existing abnormality or condition and no basis for a deduction for pre-existing impairment.
In respect of WPI Dr Bodel found:
(a) cervical spine – 7% WPI;
(b) lumbar spine – 0% WPI;
(c) right upper extremity – 6% WPI, and
(d) left upper extremity – 6% WPI;
(e) for a total of 18% WPI overall.
Dr Bodel noted in his report that there had been a slight reduction in overall levels of impairment since he had previously seen Mr Willis in April 2014. When he first assessed him, he had the DRE Lumbar Category II rating with 5% WPI, and the neck was DRE Cervical Category I rating. The ratings were reversed with the current assessment. There were slight differences in the clinical findings since last seen that accounted for the slight change in the level of assessable impairment.
Pursuant to Amended Certificate of Determination – Consent Orders issued by the former Workers Compensation Commission on 21 September 2020 the matter was referred to an AMS to assess “…deterioration (disease claim) for following the [sic] body parts”:
(a) permanent impairment of the back as compared to a most extreme case (14% previously awarded);
(b) permanent impairment of the neck as compared to a most extreme case – (8% previously awarded);
(c) permanent loss of use or the efficient use of the right arm – shoulder and elbow (15% previously awarded);
(d) permanent loss of use or the efficient use of the left arm shoulder and elbow – (15% previously awarded);
(e) permanent loss of use or the efficient use of the right leg – knee – (5% previously awarded), and
(f) permanent loss of use or the efficient use of the left leg- knee – (5% previously awarded).[6]
In the Amended Referral for Assessment of Permanent Impairment to Approved Medical Specialist issued by the Dispute Services Coordinator as delegate of the Registrar the same day, the following appeared in respect of the abovementioned body part/s referred:
“The AMS is to assess deterioration (disease claim) for the following the [sic] body parts.”[7]
[6] Appeal Papers p 52.
[7] Appeal Papers p 49.
The AMS was also asked to provide a total WPI assessment for threshold purposes, regardless of the date of injury, of the following body parts:
(a) cervical spine;
(b) lumbar spine’
(c) right upper extremity (shoulder and elbow);
(d) left upper extremity (shoulder and elbow);
(e) right lower extremity (knee), and
(f) left lower extremity (knee).
The Medical Assessor provided the following assessments pursuant to the Table of Disabilities:
(a) permanent impairment of the neck – 15%;
(b) permanent impairment of the back – 15%;
(c) permanent loss of efficient use of the right arm at or above the elbow and below the elbow – 30%;
(d) permanent loss of efficient use of the left arm at or above the elbow and below the elbow – 30%;
(e) permanent loss of efficient use of the right leg at or above the knee and below the knee – 15%, and
(f) permanent loss of efficient use of the left leg at or above the knee and below the knee – 5%.
The appellant does not dispute these assessments.
The Medical Assessor provided the following assessments of WPI:
(a) cervical spine – 5%;
(b) lumbar spine – 7%;
(c) right upper extremity – 11%;
(d) left upper extremity – 11%;
(e) right lower extremity – 4%, and left lower extremity – 4%.
The appellant does not dispute these assessments.
The Medical Assessor deducted 7/8th from each of the assessments pursuant to the Table of Disabilities referred to in [18] above being the proportion of permanent impairment due to pre-existing injury, abnormality or condition. He also deducted 7/8th from each of the assessments of WPI referred to in [20] above pursuant to s 323 of the 1998 Act for pre-existing injury, condition or abnormality. The appellant takes issue with both of these deductions.
The Medical Assessor explained the reasons for these deductions in [11] of the MAC[8]. He said that the appellant has had no occupation since 1996, some 24 years ago, and that in that intervening period there would very obviously be the development of degenerative changes. “Some of these could be accelerated degenerative changes, associated with his occupation as a shearer, although there would also be components of deterioration due to normal ageing.” Dr Anderson was of the view that, on his assumption that only one quarter of the appellant’s shearing career could be reasonably be attributed to his employment with Kelvin Oates, there should be a three quarters deduction from his assessments of permanent impairment and WPI in respect of employment as a shearer with an employer other than Kelvin Oates. There should be a further 1/8th deduction for any further impairment due to the effects of age related factors. “Therefore, applying this mathematically across the increase in Mr Willis’s further deterioration, 7/8ths of this is due to factors other than his occupation with the Kelvin Oats Group.”[9]
[8] Appeal Papers p 45.
[9] Appeal Papers p 45.
The appellant takes issue with the deductions made by the Medical Assessor referred to in [20] above.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because neither the appellant nor the respondent requested that the worker be re-examined by an AMS who is a member of the Appeal Panel, and the Panel considers that there is sufficient material in the evidence before it with which to determine the appeal.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
Appellant
In summary, the appellant submits that in respect of his claim, the “deemed date” of injury is 8 August 1996 and is governed by s 16 of the Workers Compensation Act 1987 (the 1987 Act) which provides that if an injury consists in the aggravation, acceleration, exacerbation and/or deterioration of a disease, the injury shall for the purposes of the Act, be deemed to have happened at the time of the worker's death or incapacity and if the worker’s employment with two or more employers has been a contributing factor to the aggravation, acceleration, exacerbation and/or deterioration, compensation is payable by the employer who last employed the worker in that employment (the first respondent).
The appellant refers to the Court of Appeal decision of Crisp v Chapman[10], which applied the long established test from Smith v Mann[11], that where a worker has contracted a disease, which is of such a nature as to be contracted by a gradual process, it is not necessary for him in an application for compensation to establish that the disease was actually brought about or contributed to by the employment undertaken for the employer, or employers during the twelve months preceding his disablement (in this case, Kelvin Oates). It is enough if the disease is incidental to that class of employment so that it can be attributed to service therein (that is, shearing). Injury in accordance with the definition in s 4(b)(ii) of the 1987 Act does not require that the particular disease was caused by a particular incident in the worker’s employment at a particular time. It is only necessary for the worker to establish that the disease was contracted in the course of employment, in this case as a shearer, and that the employment, that is employment as a shearer, was a substantial contributing factor to the contracting of the disease.
[10] (1940) NSWCCR 492.
[11] (1932) 47 CLR 426.
Section 16 of the 1987 Act assumes that an injury has occurred and provides the means of determining when the injury is deemed to have happened and by whom the compensation is payable. In doing so, the whole of the appellant’s employment as a shearer is taken into account.
The appellant submits that it was a fundamental error, indicative of the fact that the assessment was made on the basis of incorrect criteria and/or demonstrable error, for the Medical Assessor to deduct ¾ from his assessments as representing the period when the appellant was working as a shearer for an employer other that Kelvin Oates. This approach is completely at odds with the requirement of s 16 of the 1987 Act, which requires that the whole of the appellant’s working life as a shearer to be taken into account. There should be no deduction for the work carried out by the appellant with previous employers as a shearer.
The respondent submits that the Medical Assessor committed a demonstrable error by making a further deduction of 1/8th from his assessments to take account of degenerative changes over the past 24 years since the appellant last worked. The Medical Assessor was only asked to assess the deterioration of the appellant’s conditions since the AMS assessment on 28 November 2012, not the deterioration since 1996.
The appellant also points out that the Medical Assessor considered that degenerative changes could be accelerated as a result of his occupation as a shearer. The appellant notes from p 4.5 of the MAC[12] that there was no other recorded condition which would be likely to influence his current claim, particularly since he ceased work.
[12] Appeal Papers p 39.
The appellant sets out what he submits should be the correct assessments of permanent impairment according to the Table of Maims, having regard to the assessments contained in the MAC dated 28 November 2012 issued by AMS Dr Chris Oates.
The appellant also submits that the same approach should be adopted in respect of the assessment of WPI, that is, that there should be no deductions from the assessments of WPI for each body part assessed without there being any deduction for work with previous employers or the supposed effects of ageing over 24 years.
Using the Combined Table values with the assessments of WPI for each body part, the appellant submits that the total WPI is calculated at 37%.
Second respondent
The submissions opposing those of the appellant are forthcoming from the second respondent, the first respondent Kelvin Oates having been uninsured for workers compensation at the time that the appellant was injured on 8 August 1996.
In reply, the second respondent submits that it is the role of the Medical Assessor to assess the totality of the appellant’s impairment then make relevant deductions to exclude any of the impairment that is unrelated to the work injury and any impairment resulting from previous injury, pre-existing condition or abnormality pursuant to s 323 of the 1998 Act. The Medical Assessor has done this.
The second respondent submits that the Medical Assessor is not bound by the findings of the previous AMS in 2012 and it was open to him to reach a different conclusion with respect to the level of permanent impairment resulting from the work injury. The second respondent also submits that the Medical Assessor is not bound by other medical opinions and was entitled to rely on his own assessment, citing Pitsonis v Registrar of the Workers Compensation Commission[13], and that weighing up evidence and formulating a medical opinion contrary to that of another practitioner does not constitute a demonstrable error, citing Merza v Registrar of the Workers Compensation Commission[14]. The second respondent therefore submits that there was no error on the part of the Medical Assessor by assessing the totality of impairment and then making appropriate deductions both pursuant to s 323 of the 1998 Act as well as excluding the proportion of non-injury related impairment.
[13] [2008] NSWCA 88.
[14] [2006] NSWSC 939.
The second respondent refutes the permanent impairment claimed by the appellant in his submissions, which assumes that the entirety of the appellant’s permanent impairment/WPI results from the work injury, which is not consistent with the available evidence. The Medical Assessor is required to assess only the impairment resulting from the work injury, therefore it is necessary that any impairment resulting from non-injury related factors, such as the effects of naturally occurring degenerative changes in the 24 years since the work injury, be taken into account.
The second respondent draws attention to the opinions of the four orthopaedic surgeons referred to by the Medical Assessor in the MAC who over the period from 1990 to 2017 drew attention to the lack of identifiable pathology to explain the degree of pain experienced by the appellant. The opinion of Dr Frank Machart in his report dated 30 October 2017 on the effects of naturally occurring degenerative change on the appellant’s current condition is highlighted, an opinion endorsed by the Medical Assessor.
The second respondent draws attention to the injury that the appellant suffered to his right knee on 8 April 1980 and the lump sum compensation received as a result of that injury for 15% permanent loss of use of his right leg.
The second respondent observes that it appears that the Medical Assessor has combined the s 323 deduction with the deduction with the shearing work not with Kelvin Oates and the deduction for non-work related impairment, to reach a combined deduction of 7/8th. The second respondent refers to the reasoning of the Medical Assessor at [11] on p 10 of the MAC[15] in support of its submission that the Medical Assessor has provided detailed reasoning for the s 323 deduction made by him.
[15] Appeal Papers p 45.
The second respondent submits that the appellant’s request to have the assessments referred to in [23] and [26][16] of the appellant’s submissions substituted for those of the Medical Assessor should be dismissed.
FINDINGS AND REASONS
[16] Appeal Papers pp 12 & 13.
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made. Once error is made out, the Panel may “review” the MAC (see Siddik v Workcover Authority of NSW[17] and NSW Police Force v Registrar[18]).
[17] [2008] NSWCA 116.
[18] [2013] NSWCA 1792.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
Section 323 deduction
The Appeal Panel is of the view that the Medical Assessor was in error in deducting ¾ from his assessments as representing the period when the appellant was working as a shearer for an employer other that Kelvin Oates. In this regard the Panel accepts the submissions of the appellant referred to at [28]-[31] above. The appellant relies on a deemed date of injury of 8 August 1996, fixed by reference to s 16 of the 1987 Act. Mr Willis must first show that he has suffered an injury that consists in the aggravation, acceleration, exacerbation or deterioration of a disease in accordance with the definition of disease injury in s 4(b)(ii) of the 1987 Act. Section 16 then determines the date of such injury. In this case it is the date of his incapacity (s 16(1)(a)(i)). In the 1999 Compensation Court proceedings referred to above at [9], Bagnall AJ found that the appellant suffered injury to his back and neck by way of aggravation, acceleration, exacerbation or deterioration of a degenerative disease in the neck and back, and the third respondent in those proceedings, Kelvin Oates, was the last employer of the appellant in an employment that was a substantial contributing factor to the aggravation etc of a disease, namely shearer’s back and neck.
Neither Dr Oates in his assessment of permanent impairment (referred to at [10] above), nor Dr Bodel in his assessments of permanent impairment and WPI (referred to above at
[12]-[15] above), made any deduction for a proportion of permanent impairment/WPI due to pre-existing injury, abnormality or condition.The Appeal Panel finds that the MAC of the Medical Assessor contains a demonstrable error in the deduction of ¾ from his assessments of permanent impairment and loss of use (calculated in accordance with the Table of Disabilities) and WPI. Neither the appellant nor the respondent takes issue with the assessments of the Medical Assessor before such deduction.
The deduction of a further one eighth from the assessments
The medical members of the Appeal Panel acknowledge that an injury in a part of the body would make a person more prone to further degenerative change in that body part if not for that injury. In that sense, the further degenerative change was causally related to the original injury, although it would be hard to say what fraction of any increased impairment would be related to the degenerative change.
Further, it is not invariably the case that a person suffers from age-related degenerative change over time resulting in impairment. Not everybody suffers from such degenerative change. Therefore the injury suffered by the appellant, deemed to have occurred in 1996, made him more prone to age related change over the 24 year period from that time until the assessment of the Medical Assessor in 2020.
It is noted that both Dr Oates and Dr Bodel in their reports in evidence correctly assessed the appellant when, in their assessments, they ignored any permanent impairment/loss of use or WPI that might have been as a result of the lapse of time between the date of injury in 1996 and the date of their assessments in 2012 (Dr Oates) and 2019 (Dr Bodel).
In Ozcan v Macarthur Disability Services Ltd[19] Wood DP addressed the situation where there were two dates injury to various body parts following an initial injury, where an AMS was requested to apportion his assessment of WPI between each date of injury and body part. He did this. The issue that was the subject of an appeal from a Commission Arbitrator to the Deputy President pertained to the question of the connection between the original injury on 14 November 2011 and the appellant’s ultimate WPI. That issue was whether the appellant was entitled to the combined value of the total WPI assessed by the AMS as 15%[20].
[19] [2020] NSWWCCPD 21 (Ozcan).
[20] Ozcan at [4] and [9].
At [103] in Ozcan Wood DP referred to ss 319, 322, 323 and 326 of the 1998 Act, observing at [104] that all of those sections dealt with the issue of the impairment that results from an injury. The Deputy President then considered the question of causation between the injury and the resulting impairment with reference to Secretary, New South Department of Education v Johnson[21] decided 20 December 2020, the well known passage of Kirby J (as he then was) in Kooragang Cement Pty Limited v Bates[22] in respect of the causation issue in workers’ compensation claims and what the High Court said about this issue in Comcare v Martin[23].
[21] [2019] NSWCA 321 (Johnson).
[22] 919940 35 NSWLR; 10 NSWCCR 796.
[23] [2016] HCA 43; 258 CLR 267.
At [111] Wood DP said with reference to the finding of Emmett AJA in Johnson:
“Emmett AJA (with Macfarlan JA agreeing) concluded that there is no difference between the legal view of causation in tort and causation in the field of workers compensation, except that, in a claim for workers compensation, it is unnecessary to prove that the incapacity was the natural and probable consequence of the injury. It is sufficient that the incapacity results from the injury by a chain of legal causation unbroken by a novus actus interveniens.”
Johnson was a case involving a worker who suffered psychological injury on two dates with separate employers. A claim was made by the worker for permanent impairment compensation as a result of injury she suffered in the employ of the first employer in time. The Court of Appeal found that the primary judge in the Supreme Court did not hold that common law principles of causation are not applicable when assessing the degree of permanent impairment that results from an injury under s 293 of the 1998 Act. On the contrary, the judge said that it was significant that the Appeal Panel in that case did not conclude that the second injury was of a kind that severed the causal chain between the first injury and the worker’s impairment, and that if it had come to such a conclusion it was obliged to find that there was no impairment as a result of the first injury.
At [70] in Johnson Emmett AJA said:
“The question for determination by the Appeal Panel was the degree of permanent impairment now suffered by the Worker as a result of the First Injury. That question was one of fact and the Appeal Panel’s reasoning was consistent with conventional principles of causation. There are three possible categories where an earlier injury is followed by a later injury, as follows:
·Where the later injury results from a subsequent accident that would not have occurred had the victim not been in the physical condition caused by the earlier accident, the second injury should be treated as having a causal connection with the earlier accident.
·Where an earlier injury is exacerbated by a subsequent injury, there will be a causal connection between the original injury and the subsequent damage unless it can be shown that some part of the subsequent damage would have been occasioned even if the original injury had not occurred.
·Where a victim, who had previously suffered an injury, suffers a subsequent injury and the subsequent injury would have occurred whether or not the victim had suffered the original injury and the damage sustained by reason of the subsequent injury includes no element of aggravation of the earlier injury, there will be no causal connection between the original injury and the damage subsequently sustained.” (emphasis in original)
Returning to the facts of this case, the Appeal Panel is of the view that it is analogous to the second category of Emmett AJA referred to in [57] above. In this case, there is not a second injury as such; there is a lapse of a significant period of time between the deemed date of injury and the assessment of the Medical Assessor Dr Anderson on 17 September 2020 followed by the issue of the MAC on 21 October 2020. Dr Anderson has attributed 1/8th of the permanent impairment assessed by him to the effects of naturally occurring degenerative change in this period. In the view of the Panel, for the reasons articulated in [50]-[51] above, the injury suffered by Mr Willis on 8 August 1996 made him more prone to further degenerative change if not for that injury. However, as noted, it is not invariably the case that a person suffers from age-related degenerative change over time resulting in impairment. The Panel is of the view that there is insufficient evidence in this case to find an increase in the level of impairment caused by the injury of 8 August 1996 over the period from that date until 17 September 2020, when the appellant was examined by the Medical Assessor. This is not a case which would fall into the third category articulated by Emmett AJA and referred to in [58] above. There has been no break in the causal chain between impairment resulting from the injury on 8 August 1996 and the assessment of the Medical Assessor in the MAC dated 21 October 2020.
The Panel also notes that the 1/8th of the additional impairment found by Dr Anderson was included by him in the two MACs with the ¾ of the impairment he found to have been due to pre-existing injury, condition or abnormality.[24] That clearly cannot be correct in any event.
[24] Appeal Papers pp 47 and 48.
Neither the appellant nor the second respondent takes issue with the assessments of the Medical Assessor in accordance with the Table of Disabilities or of WPI before he made the deduction of 7/8th in each case. The Appeal Panel accepts these assessments which are repeated in the MAC hereunder.
Although the Medical Assessor was asked in the referral to him to assess “…deterioration (disease claim) for the following body parts” it is the role of a Medical Assessor to assess permanent impairment/loss of use, and WPI, as a result of injury, in this case the injury deemed to have occurred on 8 August 1996. He has done this, although fallen into error in assessing deduction therefrom. The Panel does not therefore accept the appellant’s assertion in [23] of his submissions that impairment attributable to the period of time since the previous assessments of Dr Oates on 28 November 2012 should be included in the MAC hereunder.
For these reasons, the Appeal Panel has determined that the MACs issued on 21 October 2020 should be revoked, and new MACs should be issued. The new certificates are attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Tim Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - Whole Person Impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| 1.Cervical spine | 08/08/1996 | Ch 4 p 24 | p 392 T 15-5 | 5 | Nil | 5 |
| p 384 T 15-3 | 7 | 7 | ||||
| 3.Right upper extremity | 08/08/1996 | Ch 2 p 10 | p 476 F 16-40 p 477 F 16-43 p 479 F 16-46 p 439 T 16-3 | 11 | Nil | 11 |
| 11 | ||||||
| 4. Left upper extremity | 11 | |||||
| 5. Right lower extremity | 08/08/1996 | Ch 3 p 13 | p 537 T 17-10 | 4 | Nil | 4 |
| 6. Left Lower extremity | 4 | 4 | ||||
| Total % WPI (the Combined Table values of all sub-totals) | 37 | |||||
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received before 1 January 2002
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Dr Tim Anderson and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Assessment in accordance with the Table of Disabilities for injuries received before
1 January 2002
| Body Part (describe the body part as per Table of Disabilities) e.g. right leg at or above the knee | Date of injury | Total amount of permanent % loss of efficient use or impairment | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Total permanent % loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4.) |
| Neck | 08/08/1996 | 15% | Nil | 15% |
| Right arm at or above the elbow and below the elbow | 08/08/1996 | 30% | Nil | 30% |
| Left arm at or above the elbow and below the elbow | 08/08/1996 | 30% | Nil | 30% |
| Back | 08/08/1996 | 15% | Nil | 15% |
| Right leg at or above the knee and below the knee | 08/08/1996 | 15% | Nil | 15% |
| Left leg at or above the knee and below the knee | 08/08/1996 | 5% | Nil | 5% |
Brett Batchelor
Member
Dr Phillipa Harvey-Sutton
Medical Assessor
Dr Brian Noll
Medical Assessor
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